The U.S. Court of Appeals for the Fifth Circuit has wiped out its recent panel ruling on due process rights for detained migrants and will rehear the case before the full court.
In an order, the court said a majority of its active, non-disqualified judges voted on their own motion to rehear the case en banc. The order sets oral argument for a later date, directs the clerk to issue a supplemental briefing schedule, and vacates the panel opinion issued on July 2, 2026.
That last part is the operative one. The earlier decision is no longer binding while the full Fifth Circuit takes another run at the case.
The July panel ruling had partly rejected the Trump administration’s position in a fight over immigration detention and constitutional process. According to the prior decision as described in the litigation, the panel did not say detained migrants could invoke due process protections immediately after being taken into custody. Instead, it recognized those rights only after a person had been held for more than 90 days.
That was a narrow win for the challengers and a large carveout for the government. The Fifth Circuit covers Texas, Louisiana and Mississippi, three states central to federal immigration detention and enforcement fights. A rule allowing the government to hold people for 90 days before due process protections attach would give the Department of Homeland Security and Immigration and Customs Enforcement a long runway before a detainee could challenge detention under that theory.
The dispute sits inside a broader fight over how far the Trump administration can go in treating migrants inside the United States as if they were caught at the border. The administration has invoked the Alien Enemies Act in its immigration campaign and has argued for sharply limited process for people it seeks to remove, including people who have been in the country well beyond the moment of entry.
Courts have long recognized that people physically present in the United States have constitutional protections, including due process, even when they lack lawful immigration status. The Fifth Circuit has been one of the more receptive venues for aggressive executive-branch immigration arguments, which makes the now-vacated July ruling unusual within that court’s recent posture.
The en banc order does not explain why the judges voted to rehear the case. It also does not state what rule the full court is likely to adopt. The immediate legal effect is procedural but consequential: the panel’s 90-day line has been erased for now, and the case returns to a court that may either reinstate that limit, revise it, or adopt a more government-friendly rule.
The next concrete steps are supplemental briefs and oral argument. Until the full Fifth Circuit issues a new decision, the July 2 opinion cannot do the work it briefly appeared ready to do.
This story draws on original reporting from Techdirt.